Police need warrant to open package that reeks of pot, court says

SAN FRANCISCO -- Police need a warrant to open a package in the mail that reeks of marijuana, the California Supreme Court ruled unanimously Thursday, rejecting a prosecutor’s arguments that a search was warranted under a novel “plain smell” test.

In a ruling written by Justice Goodwin Liu, the state high court dismissed arguments by Santa Barbara County prosecutors that contraband could be searched under a theory that would extend the “plain sight” test to “plain smell.” Police are generally entitled to seize evidence that is in plain sight.

Although officers had the legal right to take the FedEx package, they should have obtained a warrant before opening it, the court said. The package contained 444 grams of marijuana, and the alleged sender was charged with selling and shipping marijuana.

“There is no dispute as to whether the police lawfully seized the package without a warrant,” Liu wrote. “Because there was no justification for an immediate search of the package once it was seized, the police had no derivative authority to search the package later at the police station without a warrant."

Police took the package from a FedEx office after an employee called to report that she smelled marijuana. Officers eventually opened the package at the police station.

Thursday’s ruling was a victory for the defendant in the case, who sought to prevent prosecutors from presenting evidence of the marijuana because he said the package was unlawfully searched. The marijuana evidence must now be suppressed.

The court did not rule on whether a “plain smell” test was ever legally appropriate because prosecutors had failed to argue the theory in the trial court. The court said they were procedurally barred from introducing the argument on appeal.